Citation Nr: 0808896
Decision Date: 03/17/08 Archive Date: 04/03/08
DOCKET NO. 04-28 263 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a low back condition,
myositis of the dorsal spine and degenerative disc disease of
the lumbosacral spine.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Harrigan, Associate Counsel
INTRODUCTION
The appellant served on active duty from December 1950 to
December 1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which reopened and denied the
veteran's claim for service connection for myositis of the
dorsal spine (strain), claimed as a back condition.
In a January 2006 decision, the Board reopened and denied
entitlement to service connection for myositis of the dorsal
spine. The veteran appealed the Board decision to the United
States Court of Appeals for Veterans Claims (Court). In an
October 2006 Order, the Court vacated that part of the
Board's decision that denied service connection for myositis
of the dorsal spine and remanded this appeal for further
development consistent with instructions in an October 2006
Joint Motion to Remand (Joint Remand).
The appeal is REMANDED to the agency of original jurisdiction
(AOJ) via the Appeals Management Center (AMC), in Washington,
DC. VA will notify the appellant if further action is
required.
REMAND
As an initial matter, during the pendency of this appeal, the
Court issued a decision in the appeal of Dingess v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service-connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the veteran was not
provided with notice of the type of evidence necessary to
establish an effective date or a disability rating, if
service connection is granted on appeal. On remand, the AOJ
must provide such notice.
The Court, in its October 2006 Order, granted the Joint
Remand vacating the Board's January 2006 decision because the
Board failed to properly consider the veteran's claim for a
back disability to include degenerative disc disease as well
as myositis of the dorsal spine. The veteran's initial
claim, filed in August 1992, was for service connection for a
"lower back injury." A September 1993 rating decision
denied service connection for "dorsal myositis (low back
injury)." In August 2003 the veteran filed to reopen his
claim for service connection for a "back condition." The
March 2004 rating decision reopened and denied service
connection for "myositis dorsal spine (strain) claimed as
low back condition." In it January 2006 decision, the Board
reopened and denied service connection for myositis of the
dorsal spine and referred a claim for entitlement to
degenerative disc disease to the RO as a new claim for
service connection. However, as noted in the Joint Remand,
the veteran's claim for a "low back condition" encompassed
his degenerative disc disease as well as the myositis of the
dorsal spine. As such, upon remand, the AOJ must
readjudicate the veteran's service connection claim for
residual of a low back injury to include both the veteran's
myositis of the dorsal spine and his degenerative disc
disease.
April 1952 service medical records show that the veteran was
admitted into the orthopedic service of the VA hospital in
Stapleton, New York, complaining of back pain. The veteran
reported that about one month before admission, he developed
a sudden severe pain in the right lower dorsal region while
cranking an engine, but did not seek immediate treatment.
The veteran had full range of back motion and no localized
tenderness but there was a duplication of back pain on
flexion of the dorsal spine. X-rays of the thoracolumbar
spine were not remarkable. The diagnosis was acute myositis
of the dorsal spine, due to an unknown cause. The veteran
was treated with local heat and flexion exercises and there
was a gradual decrease in symptoms. A notation dated in mid-
April 1952 shows that, at that time, the veteran was
completely asymptomatic and there was a full range of back
motion. The veteran was discharged from the hospital and
returned to full duty. There are no other service medical
records showing treatment for or a diagnosis of a back
condition. In a Report of Medical Examination dated in
December 1951, but which apparently is his discharge
examination (the veteran was discharged in December 1953),
there is a notation that the veteran was hospitalized for two
weeks in April 1952 for acute mysositis of the dorsal spine
due to unknown cause. The examination report shows that the
veteran had a normal spine at the time of the examination.
June 1991 VA medical records reflect the veteran's complaints
of back pain. He was diagnosed with low back strain. A July
1991 VA medical record shows that that veteran's back had
much improved. July 1993 VA medical records show that the
veteran reported occasional low back pain.
A July 2003 private medical record shows that the veteran was
diagnosed with advanced degenerative disc disease of the
lumbosacral spine, with pseudoarthritis at L4-5 and L5-S1,
and advanced degenerative disc disease of the dorsal spine.
The examiner stated that he had reviewed the veteran's
military records and that the veteran had continuing symptoms
of his back since onset during active duty.
A December 2003 VA spine examination report shows that the
veteran was diagnosed with thoracolumbar degenerative disc
disease without significant radiculopathy and secondary
moderate mechanical thoracolumbar back pain. The examiner
opined that the veteran's intervertebral disc disease
predominantly affects his lower lumbar region which just as
likely as not could be due to his preexisting congenital
partial sacralization at L5. The examiner concluded that he
could not tie the veteran's intervertebral disc disease into
a single entry service medical record for a transient injury
of a mid thoracic spine as it would be pure speculation on
the examiner's part.
VA medical records from July 2004 through June 2006 show a
diagnosis of and treatment for back pain and degenerative
disc disease.
The duty to assist includes obtaining medical records and
providing a VA medical examination or a medical opinion when
necessary for an adequate determination. See Duenas v.
Principi, 18 Vet. App. 512 (2004). The veteran is seeking
service connection for a low back condition. It appears from
the evidence of record that the veteran is receiving ongoing
treatment for his back condition. VA should attempt to
obtain any missing medical records regarding this treatment.
The Board finds that, in order to best fulfill the duty to
assist, the veteran should be afforded an examination to
ascertain the current diagnosis of his back condition, and,
to the extent possible, the etiology of any current back
condition, to include both the veteran's myositis of the
dorsal spine and degenerative disc disease, if the
disabilities are diagnosed.
Accordingly, the case is REMANDED for the following action:
1. The AOJ must review the entire file
and ensure that all notice obligations
have been satisfied in accordance with
38 U.S.C.A. § 5103(a) and 38 U.S.C.A. §
5103A (West 2002 & Supp. 2007) and
38 C.F.R. § 3.159 (2007) In particular,
VA must send the appellant a corrective
notice, that explains the information and
evidence not of record needed to
establish an initial disability rating
and an effective date, if service
connection is granted on appeal, as
outlined by the Court in Dingess, supra.
The claims file must include
documentation that the AOJ has complied
with VA's duties to notify and assist a
claimant.
2. The AOJ should ask the veteran to
identify all health care providers that
have treated him for his low back
condition since May 2004. The AOJ should
attempt to obtain records from each
health care provider he identifies that
might have available records. If records
are unavailable, please have the provider
so indicate.
3. The AOJ should make arrangements for
the appellant to be afforded an
orthopedic examination to ascertain the
current diagnosis of the appellant's low
back condition, and whether the
appellant's current low back condition is
etiologically related to his active duty.
All indicated tests or studies deemed
necessary for accurate assessments should
be done. The claims file, the Joint
Remand and this remand must be made
available to the examiner for review of
the pertinent evidence in connection with
the examination, and the report should so
indicate.
The examiner should review the entire
record and address all of the pertinent
medical records and offer an opinion as
to (1) the current diagnosis of the
appellant's low back condition(s), to
include whether the veteran has a current
diagnosis of myositis of the dorsal spine
or degenerative disc disease (2) whether
it is at least as likely as not (50
percent or more probability) that each
current low back condition(s) is
etiologically related to his active duty.
If the veteran is diagnosed with myositis
of the dorsal spine and degenerative disc
disease, the examiner must provide an
opinion as to whether the disorders are
related to service.
The examiner should clearly outline the
rationale and discuss the medical
principles involved for any opinions
expressed. If the requested medical
opinions cannot be given, the examiner
should state the reason why.
4. After completion of the above, the
AOJ should readjudicate the appellant's
claim, to include whether the myositis of
the dorsal spine and degenerative disc
disease, if diagnosed, are related to
service. If any determination remains
unfavorable to the appellant, he and his
representative should be provided with a
supplemental statement of the case and be
afforded an opportunity to respond before
the case is returned to the Board for
further review.
The purposes of this remand are to comply with due process of
law and to further develop the appellant's claim. No action
by the appellant is required until he receives further
notice; however, the appellant is advised that failure to
cooperate by reporting for examinations may result in the
denial of his claims. 38 C.F.R.
§ 3.655 (2007). The Board intimates no opinion, either
legal or factual, as to the ultimate disposition warranted in
this case, pending completion of the above. The appellant
and his representative have the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).